cies of the evidence in the case at bar bring it, in our opinion, within the doctrine just stated. The engineer knew the location of the crossing. He knew that he was approaching it, for, according to all the evidence, he sounded the whistle of the locomotive with reference to it. He knew that trains on the other road were liable at any time to be on the crossing, and unable to pass clear of it after the two trains were in view of each other, or might at any time be approaching the crossing, without the ability to stop short of it, after seeing a train rapidly approaching it on his road, and that such other trains had the same right as his to approach and be on the crossing. He was advised by the statutory rule, of which he was presently aware, of the exceeding great danger of rushing headlong onto the crossing, 'in violation of it; and a visible sign was there to admonish him of the point beyond which, in every instance, it was unsafe for him to go without stopping, and ascertaining the way to be clear. And he knew, also, of that physical conformation of the locality which obscured one road from the other, and trains on them from each other, until they were so near together in approaching the crossing as that, unless the statute had been complied with, trains going even at an ordinary rate of speed would inevitably collide. The jury, finding the truth of these tendencies of the evidence, and further finding, as it was open to them to do, that this engineer, with all of this in his mind, hurled his train at a great speed upon the crossing, not even slackening its pace of 30 or 40 miles an hour, were authorized to conclude that he had that consciousness of the perilous character of the situation, and of his own conduct with reference thereto, which is an essential element of wantonness and the like, though they might also have believed that he had no actual knowledge of the approach of the Savannah & Western train. Charges 8 and 9 were therefore misleading, and well refused.

The plaintiff being a passenger on the colliding train of the Richmond & Danville Company, its employes, and, among the rest, the engineer, owed him the duty of exercising the highest degree of care, diligence, and skill In conservation of his safety, and the company was responsible in damages to him for the slightest negligence on the part of its servants resulting in injury to him. Railway Co. v. Mallette, 92 Ala. 209, 9 South. 363; Railroad Co. v. Hill, 93 Ala. 514, 9 South. 722. Care and diligence such as a reasonable and ordinarily prudent person would exercise is, in legal contemplation, reasonable and ordinary care and diligence. It is not that highest -that utmost-degree of care and diligence and skill which the law exacts of the carriers of passengers. Nor is conduct actuated by good faith, and an honest purpose to avoid injury to passengers, the equivalent of the highest care, or even necessarily of ordinary care. It is not what a man sincerely

intends doing, and does with sincere purpose to a given end, that determines whether, in doing it, he has exercised the care demanded by the situation, but the inquiry is to be resolved upon a further consideration of his acts themselves. A negligent act is none the less negligently performed because of the good faith which characterizes it. It may be that trainmen, on stopping for a crossing, are not required to know with absolute certainty in any case that the way is clear before proceeding; but, at least, when the lives of passengers are at stake, they must actually make every effort that the highest degree of care, skill, and diligence requires to be sure that the way is clear, and will remain so sufficiently long for the safe passage of a bisecting road. That they may have done all they thought necessary for assurance will not suffice; they must have done all that the dictates of the utmost care would have suggested to be done. Charges 5 and 6 requested for the Richmond & Danville Company are faulty when brought to the touch of these considerations. They were, moreover, especially misleading in view of a tendency of the evidence to show that a train, at the "stop post" of the Savannah & Western road, could not be seen by the engineer from his position at the "stop post" of the Richmond & Danville road. There was no error committed in refusing them. That trainmen of one road, who have complied with the statute, on approaching a crossing, have a right to assume that trainmen on the other road will also comply with it, in the absence of any indication that they cannot or will not, has been expressly decided by this court in a recent case. The general charge of the court on this subject is not open to the objection presented by the exception thereto, that it ignores a duty which might have arisen upon circumstances transpiring after the train has started after complying with the statute. That matter is accommodated in the further declaration, not included in the language marked by the exception, but a part of the charge on the same point, and to be considered along with every other part, to the effect, by necessary implication, that the first train has not the right to proceed over the crossing if the circumstances indicate that the other train will not stop. Railroad Co. v. Jacobs, (Ala.) 13 South. 408.

Charge No. 11 given at the request of the Savannah & Western Company assumes that the Richmond & Danville Company was guilty of negligence, and submits to the jury the inquiry only as to whether its negligence was the proximate cause of the injury. The question of negligence vel non on the part of the Richmond & Danville Company was severely litigated before the jury on parol testimony. It was solely the jury's province to determine that question. The charge under consideration was invasive of the jury's exclusive prerogative to find either that that company was or was not guilty of the negli

gence charged. The giving of it was erroneous. Cary v. State, 76 Ala. 78; Sandlin v. Anderson, Green & Co., Id. 403; Joyner v. State, 78 Ala. 448; Carter v. Chambers, 79 Ala. 223; Jonas v. Field, 83 Ala. 445, 3 South. 893. The judgment of the city court is reversed, and the cause will be remanded. Reversed and remanded.

(46 La. Ann.)

GUGLIEMI v. GEISMAR. (No. 11,437.) (Supreme Court of Louisiana. Feb. 12, 1894.) VENDOR AND PURCHASER-ACTION FOR PRICEDEFICIENCY-DESCRIPTION.

1. The plaintiff in a suit via executiva, having been enjoined on the ground that there was a deficiency in the measurement of the land sold by her, interposed the plea of no cause of action disclosed in plaintiff's petition. She has not thereby waived any of her rights to answer, and to trial on the merits, after the overruling of the exception.

2. In the interpretation of the descriptive words of deeds and grants, fixed measurements, whether they be natural or artificial, govern.

3. The issues having been tried on an exception admitting the truth of the allegations, the exception is overruled, and the case remanded for trial on the merits, in order that the permanent character and correctness vel non of the metes and bounds given in the deed may be ascertained.

(Syllabus by the Court.)

Appeal from district court, parish of Ascension; Walter Guion, Judge.

Action by Henriette Gugliemi against Louis Geismar. There was judgment for plaintiff on a preliminary issue raised, and defendant appeals. Reversed.

J. L. Bradford and Edward N. Pugh, for appellant. R. N. Sims, H. Heidenhain, and Dinkelspeil & Hart, for appellee.

BREAUX, J. This action is based upon an alleged deficiency of quantity of land sold. The price was $20,000, of which $7,000 have been paid. The plaintiff, as transferee of the notes representing the purchase price, sued out executory process on one of the notes due and owing, also for interest and 5 per cent. attorney's fee stipulated in the deed of sale, and prays that the property be sold for cash to pay the note matured, also the interest, fee, and costs, and for the balance of price on terms of credit corresponding with the remaining notes unpaid. The following is a description of the property sold: "All and singular, that certain tract or parcel of land, together with the improvements thereon, and all rights, ways, privileges, and appurtenances thereunto belonging or in any wise appertaining, situate in the parish of Ascension, in this state, on the east or left bank of the Mississippi river, about eighty-seven miles above the city of New Orleans, known or designated as the 'Waterloo Plantation,' having a front of about 4 of a mile on the Mississippi river, containing about eighteen hundred superficial acres, more or less, and being

bounded above and in the rear by the Riverside plantation, now or formerly belonging to E. S. Mansfield, and below by what is known as the 'New River Road' which separates it from the Mount Houmas plantation, which said Waterloo plantation is more specifically described as being of sections nine and ten in township ten south, range two east, and sections forty-seven, forty-eight, and thirty in township nine south, range two east, and a tract of one hundred and seventy-two 67/100 acres in the rear of said section forty-seven, with the exception and reservation of that portion of said plantation previously conveyed to the Louisville, New Orleans and Texas Railway Company for a right of way and depot grounds." The defendant sued out an injunction, and claims a deficiency in measurement of 463.76 acres, and prays for a proportionate restitution of the purchase price. He alleges in his petition for an injunction that plaintiff in the executory proceedings is not the owner of the notes sued on, but that he holds them for account of his vendor. The act of sale is specially referred to in the petition for injunction, and the fact that it contains the usual clauses of warranty. It is also averred that some of the land sold by the plaintiff to Geismar is public land, and that some of it belongs to and is in the possession of other persons. The plaintiff in executory process, Henriette Gugliemi, and the defendant in injunction, interposed the plea of no right of action, on the ground that it was a sale per aversionem embraced between welldefined boundaries. The case was heard on the issues thus presented and judgment was pronounced for the plaintiff, Henriette Gugliemi. The defendant in executory process, Louis Geismar, prosecutes this appeal.

A point for decision comes up preliminarily: The plaintiff did not call on the defendant to prove in a summary manner, before the judge, the truth of the facts alleged in his injunction. He did not choose to follow this mode of defense, as laid down in the Code Practice, but, instead, relied upon the exception of no cause of action; and thereby, for the purpose of the exception, the allegations of the petition are taken as true. The fact that plaintiff might have accepted the issues, and might have considered the injunction as an answer, and could have proceeded to the trial without further pleading, and the fact that he might have filed such a plea as would have compelled his opponent to prove the verity of the allegations of his petition for the injunction, are not a waiver of the right of trial on the merits in case of the overruling of the exception of no cause of action. Wood v. Henderson, 2 La. Ann. 220; Johnston v. Hicky, 4 La. 285; Fletcher v. Dunbar, 21 La. Ann. 151; State v. Booth, 28 La. Ann. 726; State v. Judges of Court of Appeals, (recently decided,) 14 South. 419. This brings us to a consideration of the exception itself and to a determination of the question whether there was a cause of action.

If the sale was a sale per aversionem, and the title, as the issues are made, is valid to all lands within the boundaries, and there was no error regarding the boundaries them selves, the exception was properly maintained by the court a qua. The decisions, uniformly, are that calls in a deed fixing the boundaries of the land conveyed by lands of adjacent owners will control, when these boundaries are well defined; that where the metes and bounds are given by the deed, and the quantity of a tract of land, the former if they are well shown and established, will prevail, although there is a deficiency in the number of acres. In other words, if there be error as to quantity, but none as to boundary, the purchaser cannot claim on account of diminution in the num ber of acres, in the absence of all attempt at concealment and fraud. The rule applies with equal force to divisions into townships, sections, and subdivisions of sections, when preceded by a description of property by metes and bounds. This might be illustrated in various ways. Following, for the purpose of example, the rule of construction that the element of description will be followed as to which there is the least likelihood of mistake, let us suppose that the land is sold by metes and bounds; the front boundary being the Mississippi river, and the other boundaries being, if possible, equally as monumental. Sections on the water course, sold as entire sections, although fractional, would not control. The description fronting on the Mississippi river would control the acres, without regard to a superadded section as part of the description. In Millikin v. Minnis, 12 La. 543, the sale was not by boundary. The inference is inevitable. If it had been a sale by metes and bounds, they would have governed. In that case the land was on the Mississippi river, with a front of about three-quarters of a mile. The front line extended to a fence, and followed the fence to the rear, and be yond the same; containing 640 acres, more or less, being four quarter sections, as surveyed by Maxfield Ludlow, etc. The court says: "In seeking for the intention of the parties, the whole contract must be examined, and, if possible, effect given to every part. The expressions, 'being four quarter sections, as surveyed by Maxfield Ludlow, etc.,' form an important point of the designation of the land conveyed, and cannot be overlooked. If there had been no other description of the land, it would have been sufficient to convey the four quarter sections for which patents were afterwards obtained by the defendant. There is no difficulty about the lane which forms the lower line. The dispute appears to have arisen from the vague manner in which the upper boundary has been described, as running on a fence and beyond it, without saying either in what direction or to what distance. We are of opinion that a reference in the contract to

the survey of Ludlow must control the vague and indefinite description of boundaries in other clauses of the contract." (The last italics are ours.) The boundaries were vague and indefinite. Therefore, other data controlled, in locating the tract of land. In Kirkpatrick v. McMillen, 14 La. 497, the reference to the plan and boundaries of the streets governed, and not the lots as numbered, and the measure as given. We have not found a case in which it was held that the established, well-known boundary lines of the four sides of a tract of land shall not control the location, in a bona fide sale of land thus bounded. Courses, distances, admeasurements, and ideal lines upon the ground, yield to known and fixed measurements, whether natural or artificial. These being governing principles, they must control the issues in the case at bar.

The allegations being admitted as true, the plaintiff is at this time in the attitude of having admitted, for the purpose of the exception, that a small portion of the land in question is public land, and that some of the land is in the possession of the owner of Riverside plantation. These issues de mand hearing, and further consideration. The ruling regarding the exception is there fore annulled, that it may be ascertained how much, if any, of the land in question is public land, and that the dividing lines between Waterloo plantation and Riverside plantation may, if possible, be established in accordance with the calls of the deed that read as follows, viz. "above and in the rear by Riverside plantation," and there by include within correct boundaries all lands forming part of Waterloo plantation. It is ordered, adjudged, and decreed that the judgment appealed from be annulled and set aside, that the case be reinstated for trial, and that same be heard on the merits, in accordance with the views above expressed The case is therefore remanded to the district court. Appellee to pay costs of appeal.

(Supreme Court of Louisiana. Jan. 2, 1894.) LICENSE-MANUFACTURERS.

Exemptions from taxation are strictly construed. A corporation claiming to own a secret, nonpatented process by which, without the use of any chemical, it is enabled to make selections of green coffees which, through careful and cleanly roasting and a secret process of cooling, produce "brands" of unground roasted coffees, each one of which is claimed to have a recognizable taste, is not a "manufacturer," within the meaning of article 206 of the constitution, and is not exempt under that article from the payment of a license. (Syllabus by the Court.)

Appeal from first city court of New Orleans; J. Paris Childress, Judge,

Action by the city of New Orleans against the New Orleans Coffee Company, Limited, to recover a wholesaler's license fee. There was judgment for defendant, and plaintiff appeals. Reversed.

George W. Flynn, Asst. City Atty., and E. A. O'Sullivan, City Atty., for appellant. Moise & Cahn, for appellee.

PARLANGE, J. The defendant corporation claims to be "a manufacturer of coffee," and to be, as such, exempt, under article 206 of the constitution, from the payment of a license. The defendant corporation contends that by means of a secret, nonpatented process it is enabled to make a selection of green coffees having the qualities required for the purpose intended, which coffees, after being subjected to manipulation, being roasted, and being allowed to cool in a particular manner, produce certain brands of coffee, each having a recognizable taste and flavor. The defendant corporation says and insists that no chemicals of any kind are used during the secret process, and it is upon the production of its different brands of roasted coffee that it relies to be held to be "a manufacturer of coffee." We have considered the evidence and the pleadings with care, and we are satisfied that the defendant corporation does not claim that it is a manufacturer by reason of grinding coffee, and thereby changing its form; and, while some incidental statements to be found in the testimony might indicate that exceptionally the defendant corporation may grind the coffee which it manipulates, its claim to be a manufacturer of coffee is based wholly on the production of brands of unground roasted coffee. These brands, as stated, are claimed to be the result as well as the object of the secret process above referred to, which process the defendant claims is valuable, $1,000 having been offered for it. Whatever this secret process may be, we are to decide whether the defendant corporation is a manufacturer, on the tangible results of the manipulation to which they subject green coffees, bearing in mind the assertion of the defendant corporation that it uses no chemicals, and that the coffee, after the manipulation, is still pure coffee. The defendant corporation virtually admits that a "coffee roaster" is not a manufacturer, but denies that such a designation can properly be applied to it. A "coffee roaster" is testified by the witness for the defendant corporation to be a person "who takes a sack of coffee and simply puts it in a roaster, and turns that coffee out after it is roasted."

Exemptions from taxation are strictly construed, the general rule being that every citizen must bear his share of the expenses of government. Is the defendant corporation a manufacturer? Admitting that it has a secret process for the selection of green coffees, the result of which is the pro

duction of "brands of coffee" suitable to different tastes, and recognizable from each other, and admitting further its claims of careful and cleanly roasting, and its other secret process of cooling the roasted coffee, is the result a manufactured article? We think not. It is not every employment of labor which will make the thing upon which it is employed a manufacture. It has been held that the great and laborious pursuits of mining and shipbuilding are not manufacturing occupations. In another order this court has held that a maker of ice cream, even on a considerable scale, is not a manufacturer. New Orleans v. Mannessier, 32 La. Ann. 1075. In that case this court said that the mammoth kitchen of a hotel is not a manufactory, yet the confectionery and the kitchen yield products in which the identity of the articles from which they are made is almost lost. In the case of Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, the supreme court of the United States held that, where the outer layer of shells was cleaned off by acid, and the second layer was then ground off by an emery wheel, so as to expose the brilliant inner layer, the result was not a manufactured article. We quote further from Hartranft v. Wiegmann, as follows: "We are of opinion that the shells in question here were not manufactured, and were not manufactures of shells. * * * They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character, or use from that of a shell. The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws. Washing and scouring wool does not make the result a manufacture of wool. Cleaning and ginning cotton does not make the result a manufacture of cotton. In Schedule M of section 2504, Rev. St., a duty of 30 per cent. ad valorem is imposed on 'coral, cut or manu-' factured;' and in section 2505, 'coral, marine, unmanufactured,' is made exempt from duty. These provisions clearly imply that, but for the special provision imposing the duty on cut coral, it would not be regarded as a manufactured article, although labor was employed in cutting it. In Frazee v. Moffitt, 20 Blatchf. 267, 18 Fed. 584, it was held that hay pressed in bales, ready for market, was not a manufactured article, though labor had been bestowed in cutting and drying the grass and baling the hay. In Lawrence v. Allen, 7 How. 785, it was held that India-rubber shoes, made in Brazil, by simply allowing the sap of the Indiarubber tree to harden upon a mold, were a manufactured article, because it was capable of use in that shape as a shoe, and had been put into a new form, capable of use, and designed to be used in such new form. In U. S. v. Potts, 5 Cranch, 284, round copper plates,

turned up and raised at the edges from four to five inches by the application of labor to fit them for subsequent use in the manufac ture of copper vessels, but which were still bought by the pound as copper for use in making copper vessels, were held not to be manufactured copper. In the case of U. S. v. Wilson, 1 Hunt, Mer. Mag. 167, Judge Betts held that marble which had been cut into blocks for the convenience of transportation was not manufactured marble, but was free from duty, as being unmanufactured." The evidence in the instant case, and the spirit of the decisions cited, satisfy us that the defendant corporation is not a manufacturer of coffee, as claimed by it, so as to entitle it to exemption from license under article 206 of the constitution. The Ernst Case, 35 La. Ann. 746, relied on by the defendant corporation, is not applicable. To clean rice, a long and laborious process is required; a large and expensive plant, including powerful and complicated machin ery, is necessary; and from the "paddy" several marketable by-products are obtained, besides the cleaned rice. It is therefore or dered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, reversed, annulled, and set aside, and that said defendant corporation pay to the plaintiff the sum of $50 as a license due said plaintiff by said defendant for carrying on the business of wholesale dealers for the year 1893, and that said defendant further pay said plaintiff 2 per cent. per month interest on said amount from March 1, 1893, and all costs.

(46 La. Ann.)

HERBER▾. THOMPSON. (No. 11,339.) (Supreme Court of Louisiana. Jan. 15, 1894.) JUDGMENT OF FORECLOSURE-THIRD OPPOSITIONPLEADINGS-ESTOPPEL.

Third opponents before the sale inconsistently asked for the nullity of the sale on the ground of simulation, etc., and also asked for the proceeds. After the sale to one who declared himself the owner of the mortgage notes under which the sale was made, and who, having bid less than his debt, paid no price, third opponents filed amended petitions, in which they alleged that the adjudicatee was aware of the simulation; and they restricted their prayer to the annulment of the sale and mortgage, asking for the citation of all parties to the sale. Held, that under the circumstances of this case, and the pleadings therein, third opponents are not estopped from attacking, by a direct action, the sale and mortgage, as being simulated. Held, further, that in this case the action set forth in the amended petitions contains all the elements of a direct action, affords all the opportunities for exceptions and answer, and affords, also, the same delays and mode of trial which could be claimed in a direct action. Breaux, J., dissenting. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action by George F. Herber against Philip Thompson to foreclose a mortgage. There was decree of sale for plaintiff, but, before

execution thereof, interventions and third oppositions were separately filed by J. & M. Schwabacher, H. L. Bidstrup, and the Uman-Goulsborough Company, Limited. From the judgment dismissing the petitions of op ponents, they appeal. Reversed.

W. S. Benedict, Robert G. Dugue, and James Legendre, for appellants. Charles J. Theard, for appellee.

PARLANGE, J. The plaintiff, holding five promissory notes signed by the defendant, aggregating $25,000, and secured by mortgage on a plantation situated in the parish of St. Landry, obtained an order of seizure and sale from the civil district court for the parish of Orleans. Before the sale, three creditors of the defendant, holding judgments against him aggregating $16, 985.63 and interest, filed their separate petitions of intervention and third opposition in the executory proceedings. They alleged, substantially, that the plaintiff had no interest in the mortgage notes or in the mortgage, which they charged to be a pure simulation, to the knowledge of plaintiff, for the purpose of screening defendant's property and its proceeds from the pursuit of his creditors. They further averred that the mortgage, if not simulated, is fraudulent, and was resorted to by the defendant, while he was in insolvent circumstances, to screen his property, as stated, to the knowledge of the plaintiff and of the original mortgagee, neither of whom gave any consideration for said notes, and that the opponents had only discovered the facts alleged within two months from the time when they filed their interventions and third oppositions. opponents further averred that if the mortgage was not simulated or fraudulent, or both, and if the notes were ever issued, or issued in good faith,-which they deny,-the notes afterwards went back into the possession of the defendant, and that the mortgage has been extinguished by payment, compromise, or otherwise; that the property is worth $25,000, and that the defendant is still insolvent, and that any other property he may own is subject to mortgages far in excess of its value; and that opponents will be remediless if the mortgage on which the executory process issued is not decreed null, or to have been extinguished. Each of the opponents prayed that the sheriff of the parish of St. Landry be ordered to hold in his hands, out of the proceeds of the sale, a sufficient sum to pay their judgments, and that "judgment may be rendered decreeing the mortgage * * to be simulated, null, and void, and if not simulated or fraudulent, or both, to have been extinguished by payment, compensation, confusion, or otherwise; * directing the amount of petitioner's said judgment to be paid in full, by privilege and with mortgage, out

The

of the proceeds of the sale to be made herein." To these interventions and third op